Nevada
|
88-0425691
|
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
|
555 Wireless Boulevard, Hauppauge, NY
|
11788
|
|
(Address of principal executive offices)
|
(Zip Code)
|
Title of each class
|
Trading symbol
|
Name of each exchange on which registered
|
||
Common Stock, $0.01 par value
|
CEMI
|
The NASDAQ Stock Market LLC
|
Large accelerated filer
|
☐ |
Accelerated filer
|
☒ |
Non-accelerated filer
|
☐ |
Smaller reporting company
|
☒ |
Emerging growth company
|
☐ |
Page
|
||
PART III
|
||
Item 12.
|
5
|
|
PART IV
|
||
Item 15.
|
8
|
|
10
|
ITEM 12. |
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
|
• |
each person known to us to be the beneficial owner of more than five percent of the then-outstanding shares of common stock;
|
• |
each named executive officer included in “Executive Compensation—Summary Compensation Table,” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2019, as amended;
|
• |
each current director and each nominee for election as a director; and
|
• |
all of our executive officers, directors and director nominees as a group.
|
Common Stock Beneficially Owned
|
||||||||
Beneficial Owner
|
Shares
|
%
|
||||||
5% Stockholders
|
||||||||
Norman H. Pessin(1)
500 Fifth Avenue, Suite 2240
New York, NY 10010
|
1,367,587
|
7.8
|
%
|
|||||
Nantahala Capital Management, LLC(2)
130 Main Street, 2nd Floor
New Canaan, CT 06840
|
1,239,983
|
7.1
|
%
|
|||||
Laurence W. Lytton(3)
467 Central Park West
New York, New NY 10025
|
1,010,718
|
5.8
|
%
|
|||||
Royce & Associates, LP(4)
745 Fifth Avenue
New York, NY 10151
|
991,492
|
5.6
|
%
|
|||||
Named Executive Officers and Directors
|
||||||||
Neil A. Goldman(5)
|
129,236
|
*
|
||||||
Javan Esfandiari(6)
|
128,773
|
*
|
||||||
Gail S. Page(7)
|
88,815
|
*
|
||||||
Katherine L. Davis
|
90,143
|
*
|
||||||
John G. Potthoff(8)
|
65,897
|
*
|
||||||
Mary Lake Polan(9)
|
26,522
|
*
|
||||||
John J. Sperzel III(10)
91 Hartwell Avenue
Lexington, MA 02421
|
31,815
|
*
|
||||||
Richard L. Eberly
|
0
|
*
|
||||||
All executive officers and directors as a group (8 persons)(11)
|
587,293
|
3.3
|
%
|
*
|
Less than 1%.
|
(1) |
Based on an amended Schedule 13D filed on July 18, 2019.
|
(2) |
Based on a Schedule 13G filed on February 14, 2020. As of December 31, 2019, Nantahala may be deemed to be the beneficial owner of 1,239,983 shares held by funds and separately managed accounts under its control,
and as the managing members of Nantahala, each of Messrs. Wilmot B. Harkey and Daniel Mack may be deemed to be a beneficial owner of those shares.
|
(3) |
Based on a Schedule 13G filed on March 20, 2020. Of the shares, 273,264 are held for the benefit of the Lytton-Kambara Foundation, 120,048 shares for the benefit of the AWL Family LLC, 21,000 for the benefit of
the IKL Trust, 13,200 for the benefit of the WWL Trust, 9,100 for the benefit of the KLL Trust, and 45,290 shares for the benefit of other accounts of which the reporting person is deemed to have beneficial ownership.
|
(4) |
Based on a Schedule 13G filed on January 21, 2020.
|
(5) |
Include (a) 20,725 restricted shares, one-half of which will vest on each of October 8, 2020 and 2021, and (b) options to acquire 41,666 shares.
|
(6) |
Include (a) 25,907 restricted shares, one-half of which will vest on each of October 8, 2020 and 2021, and (b) options to acquire 20,000 shares.
|
(7) |
Include (a) 30,864 restricted stock units scheduled to vest in full on May 15, 2020, and (b) options to acquire 28,125 shares.
|
(8) |
Include options to acquire 28,125 shares.
|
(9) |
Include options to acquire 18,750 shares.
|
(10) |
Does not include shares of common stock underlying certain options that were received by Mr. Sperzel during his time as our Chief Executive Officer and President and that had vested as of the time of his
resignation. The compensation committee of the board has determined that Mr. Sperzel failed to exercise such options in a timely manner prior to their expiration. Mr. Sperzel has asserted that he continues to have the right to exercise
those options to acquire 266,666 shares for an aggregate exercise price of $943,126.
|
(11) |
Include, in addition to the restricted shares and options described in notes (5) through (10), (a) 6,098 restricted stock units and (b) options to acquire 36,000 shares. Do not include any shares held by Mr.
Sperzel.
|
Plan
Category
|
Number of
Securities
to be Issued
Upon
Exercise of
Outstanding
Options,
Warrants and
Rights
|
Weighted
Average
Exercise Price
of
Outstanding
Options,
Warrants
|
Number of
Securities
to be Issued
Upon
Exercise of
Outstanding
Restricted Stock
Units
|
Weighted
Average
Exercise Price of
Outstanding
Options,
Warrants and
Rights
|
Number of Securities
Remaining Available
for
Future Issuance
Under
Equity Compensation
Plans
|
|||||||||||||||
Equity compensation plans approved by stockholders(1)
|
642,625
|
$
|
5.79
|
13,817
|
$
|
9.65
|
2,173,667
|
|||||||||||||
Equity compensation plans not approved by stockholders
|
—
|
—
|
—
|
—
|
—
|
|||||||||||||||
Totals
|
642,625
|
13,817
|
2,173,667
|
(1) |
“Number of Securities to be Issued Upon Exercise of Outstanding Options, Warrants and Rights” consists of 99,132 shares under the 2008 Stock Incentive Plan, 336,625 shares under the 2014 Stock Incentive Plan, and
206,868 shares issued outside of those plans. “Number of Securities to be Issued Upon Exercise of Outstanding Restricted Stock” consists of 13,817 shares under the 2014 Stock Incentive Plan. “Number of Securities Remaining Available for
Future Issuance Under Equity Compensation Plans” consists of 2,173,667 shares available under the 2019 Omnibus Incentive Plan.
|
ITEM 15. |
EXHIBITS, FINANCIAL STATEMENT SCHEDULES
|
(a) |
The following is filed as part of the 2019 Form 10-K:
|
(1) |
Index to Consolidated Financial Statements in Item 8 of 2019 Form 10-K.
|
(b) |
The following exhibits are included herein or incorporated herein by reference.
|
Exhibit No.
|
|
Description
|
3.1
|
|
|
3.2
|
|
|
4.1
|
|
|
10.1(a)*
|
|
|
10.1(b)*
|
|
|
10.2(a)*
|
|
|
10.2(b)*
|
|
|
10.3*
|
|
|
10.4*
|
|
|
10.5*‡
|
|
|
10.6*
|
|
|
10.7(a)*
|
|
|
10.7(b)*
|
|
|
10.8*
|
|
|
10.9(a)*
|
|
|
10.9(b)*
|
|
|
10.10*
|
|
|
10.11
|
|
|
10.12(a)
|
|
|
10.12(b)
|
|
|
10.13
|
|
|
10.14
|
|
|
10.15†
|
|
|
14.1
|
|
|
21.1
|
|
|
23.1
|
|
31.1
|
|
|
31.2
|
|
|
32.1ç
|
|
|
101.INS
|
|
XBRL Instance Document
|
101.SCH
|
|
XBRL Taxonomy Extension Schema Document
|
101.CAL
|
|
XBRL Taxonomy Extension Calculation Linkbase Document
|
101.DEF
|
|
XBRL Taxonomy Definition Linkbase Document
|
101.LAB
|
|
XBRL Taxonomy Label Linkbase Document
|
101.PRE
|
|
XBRL Taxonomy Presentation Linkbase Document
|
*
|
Indicates management contract or compensatory plan.
|
† |
Certain exhibits and schedules have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The registrant hereby undertakes to furnish copies of omitted exhibits and schedules upon request by the Securities
and Exchange Commission, provided that it may request confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934 for exhibits and schedules so furnished.
|
‡ |
Certain sensitive personally identifiable information in this exhibit was omitted by means of redacting a portion of the text and replacing it with [***].
|
ç |
The certifications attached as Exhibit 32.1 accompany the Annual Report on Form 10-K pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, and shall not be
deemed “filed” by the registrant for purposes of Section 18 of the Securities Exchange Act of 1934, as amended.
|
CHEMBIO DIAGNOSTICS, INC.
|
||
Dated: May 6, 2020
|
By:
|
/s/ Neil A. Goldman
|
Name: Neil A. Goldman
|
||
Title: Executive Vice President and Chief Financial Officer
|
1. |
I have reviewed the Form 10-K of Chembio Diagnostics, Inc.;
|
2. |
Based on my knowledge, the report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by the report;
|
3. |
Based on my knowledge, the financial statements, and other financial information included in the report, fairly present in all material respects the financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in the report;
|
4. |
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal
control over financial reporting (as defined in Exchange Act Rules 13a15(f) and 15d-15(f)) for the registrant and have:
|
(a) |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including
its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which the report is being prepared;
|
(b) |
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
(c) |
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in the report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of
the period covered by the report based on such evaluation; and
|
(d) |
Disclosed in the report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case
of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
|
5. |
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the
registrant’s board of directors (or persons performing the equivalent functions):
|
(a) |
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record,
process, summarize and report financial information; and
|
(b) |
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
|
Date: May 6, 2020
|
/s/ Richard L. Eberly
|
|
|
Richard L. Eberly
|
|
|
Chief Executive Officer and President
|
|
1. |
I have reviewed the Form 10-K of Chembio Diagnostics, Inc.;
|
2. |
Based on my knowledge, the report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by the report;
|
3. |
Based on my knowledge, the financial statements, and other financial information included in the report, fairly present in all material respects the financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in the report;
|
4. |
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal
control over financial reporting (as defined in Exchange Act Rules 13a15(f) and 15d-15(f)) for the registrant and have:
|
(a) |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including
its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which the report is being prepared;
|
(b) |
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
(c) |
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in the report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of
the period covered by the report based on such evaluation; and
|
(d) |
Disclosed in the report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case
of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
|
5. |
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the
registrant’s board of directors (or persons performing the equivalent functions):
|
(a) |
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record,
process, summarize and report financial information; and
|
(b) |
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
|
Date: May 6, 2020
|
/s/ Neil A. Goldman
|
|
|
Neil A. Goldman
|
|
|
Executive Vice President and Chief Financial Officer
|
|
(1) |
The Form 10-K for the year ended December 31, 2019 fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
|
(2) |
The information contained in the Form 10-K for the year ended December 31, 2019 fairly presents, in all material respects, the financial condition and results of operations of Chembio Diagnostics, Inc. for the
periods presented therein.
|
Dated: May 6, 2020
|
/s/ Richard L. Eberly
|
|
|
Richard L. Eberly
|
|
|
Chief Executive Officer and President
|
|
Dated: May 6, 2020
|
/s/ Neil A. Goldman
|
|
|
Neil A. Goldman
|
|
|
Executive Vice President and Chief Financial Officer
|
|